Rutledge v. FeherÂ, 255 N.C. App. 356

C.E. and Margaret Viele (the grantors) executed a deed in 1983 reserving life estates to themselves and granting life estates to their four children; the deed provided that "upon the death of the last of the four above-named children, fee simple title is to vest in our grandchildren, the living issue of the four above-named children."
At execution all four children and seven grandchildren were alive. C.E. Viele died in 1987 and Margaret Viele died in 2002; Helen Viele Price (one of the four children) remained the last surviving child until shortly after the trial court judgment.
Plaintiffs Linnie Price Rutledge and her husband sued for a declaratory judgment and injunction, asserting that title to the property vests in the grandchildren upon the death of the last child and asking the court to enjoin transfers by defendants.
Defendants (various grandchildren and great-grandchildren) argued that the grandchildren held a vested remainder subject to open (i.e., vested subject to partial divestment), so the class of grandchildren and individual shares were immediately ascertainable.
The trial court held that the grandchildren (including Linnie and defendant Lisa Viele Feher) hold contingent remainders, the class of grandchildren does not close and cannot be determined until the death of the last surviving child (Helen Viele Price), and the identities of those who will take cannot be ascertained until that event. The Court of Appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether grandchildren hold vested remainders subject to open or contingent remainders	Rutledge: the deed delays vesting until death of the last child, so grandchildren hold contingent remainders	Appellants: grandchildren who were alive at deed execution received vested remainders subject to open/partial divestment	Held: contingent remainders; vesting is contingent on surviving the last child
Whether the class of grandchildren closes (is ascertainable) before the last child’s death	Rutledge: class does not close until death of the last child per deed language	Appellants: class should be ascertainable at deed execution because grandchildren then living have vested interests	Held: class will not close and cannot be determined until death of the last surviving child
Whether the individuals who will take can be determined before the last child’s death	Rutledge: identities cannot be established until the triggering event (death of last child)	Appellants: identities are ascertainable immediately because vested remainder subject to open	Held: identities cannot be established until death of last surviving child

Buchanan v. Buchanan, 207 N.C. App. 112, 698 S.E.2d 485 (2010) (definition and test for vested remainder)
Strickland v. Jackson, 259 N.C. 81, 130 S.E.2d 22 (1963) (distinction between vested and contingent remainders; takers must be ascertainable at vesting event)
Seawell v. Hall, 185 N.C. 80, 116 S.E. 189 (1923) (apply instrument language to effect grantor's expressed intent)
Wimberly v. Parrish, 253 N.C. 536, 117 S.E.2d 472 (1960) (instances where remaindermen are contingent if not determinable until a stated event)